Executor Trustee Australia Limited v the Attorney-General for the State of South Australia File No. SCGRG 91/2778 Judgment No. 3667 Number of Pages 6 Wills,

[1992] SASC 3667

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA Olsson J.(1)

CWDS
Wills, probate and letters of administration - construction and effect of testamentary dispositions - legacies and devises - testatrix left a life interest in her estate to her sister - on sister's death residue of testatrix's estate was left to eleven charitable bodies in equal shares - one such body was a Meals on Wheels service run by a Presbyterian Church - this service did not exist at the time testatrix made her last will - whether gift lapses or may be applied cy-pres - held that gift disclosed a general charitable intention - appropriate to apply cy-pres doctrine.
Andrew v. United Aborigines Mission and the Attorney-General for the State of South Australia (1988) 144 LSJS 393 and Attorney-General for New South Wales v The Perpetual Trustee Company Limited and others (1940) 63 CLR 209, applied. Re Rymer; Rymer v Stanfield (1895) 1 Ch 19; re Spencer's Will Trusts; Ogden v Shackleton and others (1878) 3 All ER 92 and March v Attorney-General (1861) 2 J and H 61, discussed.

HRNG ADELAIDE, 13 October 1992 #DATE 13:10:1992
Counsel for plaintiff:                 Mr R. Frost
Solicitors:   Treloar and Treloar
Counsel for defendant Attorney-General: Mr A. Hall
Solicitors:   Crown Solicitor
Counsel for other party Uniting Church in Australia Property Trust (Qld):         Mr D. Meyer
Solicitors:   Hume Taylor and Co.
Counsel for other party Queensland Meals on Wheels Services Association Incorporated:         Mr D. Meyer
Solicitors:   Mitchell Sillar Lynch
   and Meyer
Counsel for other party Charles Harris as executors of the estate of Gwendoline Mona Temple (deceased):         Mr S. Milazzo
Solicitors:   Lempriere Abbott McLeod

ORDER
Declaration to the effect that the bequest with which this application is concerned was of a general charitable nature; and that the specific service agency and the specific service referred to in the will having ceased to exist, it would be appropriate for the matter to be dealt with on a cy-pres basis - upon the footing that some suitable approved scheme be brought into existence for the purpose of carrying it into effect.

JUDGE1 OLSSON J. This is an application for the determination of a question of construction of a Will in a deceased estate. 2. Eleanor Frances Harden (to whom I will refer to as "the testatrix") died on 18 December 1987, having executed her last will and testament on 1 July 1982. I am informed that she died leaving a significant estate which, it is said, was of the order of almost $1 million. 3. In her will, the testatrix initially made a number of specific contingent bequests of items of personal estate to a series of named individuals. She then bequeathed various money legacies of substantial amount to other named beneficiaries. 4. Having done so, the testatrix then directed that her residuary estate be held in trust to pay the annual income arising therefrom to her sister Gwendoline Mona Temple for her life. She further directed that, on the death of her sister, the trustees were to stand possessed of the residue in trust for eleven named beneficiaries in equal shares. 5. It is to be noted that all of those beneficiaries were, on the face of the will, organisations which could fairly be described as charitable bodies. 6. The whole expression of the will, insofar as it dealt with the residuary estate, was such as, in my view, to indicate a clear general charitable intention. Of the eleven named residuary beneficiaries, two of them relate to animal welfare activities, others relate to the conduct of children's homes, yet others deal with the provision of services to elderly persons and there are two general bequests related to the Royal Flying Doctor Service and the Queensland Braille Association. 7. There are several aspects of the residuary bequests which merit specific identification. 8. The first is that, as has been pointed out by counsel, there was no particular denominational thrust to be found in the expression of the various gifts. They included organisations which were either non-church affiliated or, if they were church affiliated, were directed to a variety of churches and not merely one denomination. Secondly, there can be no doubt that, as I have indicated, the whole thrust of the residuary bequest clause in the will was towards satisfying a manifest general charitable intention - insofar as types of ultimate persons to benefit are described in the will, as, in many instances, they are. 9. By and large the clear emphasis is upon conferring benefits upon general types of person, rather than specific identified bodies as such. It seems to me that the clear intention has, in the main, been to name organisations as simply being bodies which administer the type of service which was intended in each instance to be benefited by the testatrix. 10. It should also be noted that, insofar as the residue of the estate is concerned, the sole gift to next of kin is of the life interest to the sister of the testatrix. There was no provision in relation to the residue of the estate in favour of any other next of kin of the testatrix. 11. Details of the factual background giving rise to the considerations now before me are to some extent scanty. However, at least certain key features clearly emerge from the material on file. 12. This present application focuses particularly upon that bequest which was expressed to be in favour of "ST. ANDREW'S PRESBYTERIAN CHURCH of Corner of Ann and Creek Streets Brisbane Queensland for the general purposes of St. Andrew's Meals on Wheels Service". The fundamental question which arises is as to whether that is a bequest which lapses by virtue of the non-existence of the service in question as at the date of death of the testatrix. 13. The factual history which is relevant for present purposes is that, as of July 1960, the then St Andrew's Presbyterian Church, which was located at the address stipulated in the will of the testatrix, commenced a Meals on Wheels service. That service was said, in the affidavit sworn in these proceedings, to be the first of its kind in Brisbane; and was designed to provide meals to persons who were aged, needy and sick and resided generally in the inner Brisbane city area or the surrounding suburbs of that city. 14. It is to be noted that there is no suggestion that the service was in any sense denominational. It does not appear to have been limited, in its scope, either to the constituents of the particular church in question, or, geographically, to the parish administered by the church. It is said that, commencing in 1965 and extending over a period up to 1973, some 14 other Meals on Wheels services were commenced within the metropolitan area of the city of Brisbane under the aegis of the Queensland Meals on Wheels Services Association based in that city. 15. These were centrally administered by the Association, which is one of the parties to the present proceedings represented by Mr Meyer. 16. It also emerges that, as of 28 December 1973, the Meals on Wheels service which was originally initiated by the St Andrew's Presbyterian Church ceased. I infer from the material before me that its operations were essentially subsumed by those of the centrally administered Meals on Wheels Association. 17. It is manifest that, as of the date of execution of the will of the testatrix, the St Andrew's Presbyterian Church had ceased to exist as such. That church had become part of the Uniting Church in Australia, and was then currently known as St Andrew's Uniting Church. 18. For the sake of completeness, I merely record that the testatrix was survived by her sister Gwendoline Mona Temple. She enjoyed her life interest until her death on 6 December 1989, following which the trustee took steps to distribute the residuary estate. 19. At the present time the one eleventh share which is in issue is of the order of $84,000. 20. It has been argued by Mr Milazzo, in the interests of the next of kin who would benefit in the event of the gift to the St Andrew's Meals on Wheels service lapsing, that, in the events which have happened, the gift does in fact lapse. He argues that, accordingly, the share of residue in question should pass on as an intestacy in relation thereto. 21. His submission is based upon the reasoning adopted in the English cases of Re Rymer; Rymer v Stanfield (1895) 1 Ch 19 and the case of Re Spence's Will Trusts; Ogden v Shackleton and Others (1978) 3 All ER 92. 22. Those authorities focused upon particular fact situations in which the courts held that, having regard to the particular provisions of the testamentary depositions under consideration, the gifts lapsed and, therefore, the proceeds in question passed in other directions. 23. In those cases the English courts sought to draw a clear distinction in terms which are, I consider, best expressed by Megarry V-C in Re Spence's Will Trusts. At p 99 of the report of that case, he pointed out that the various decided authorities drew a distinction between concepts of particularity and generality as applied to the construction of testamentary dispositions. As he said, if a particular institutional purpose is specified in a testamentary disposition, then it is that institutional purpose and no other that is to be the object of the benefaction. In such cases, it has been held that if the particular institutional purpose ceases to exist, then the gift fails. 24. As the learned Vice Chancellor pointed out, in such circumstances, it is difficult to envisage a testator as being suffused with a general charitable glow when he is labouring (and labouring successfully) to identify some particular specified institutional purpose as the object of his bounty. In such cases the specific displaces the general. 25. It is, of course, otherwise where a testator has been unable to specify any particular charitable institution or practical purpose, so that, although his intention of charity can be seen, he has failed to provide any way of giving effect to it. 26. There the absence of the specific leaves the general undisturbed and it is trite law that, in such circumstances, a cy-pres approach may properly be adopted. 27. Much the same line of reasoning is to be seen in Rymer's Case, although it is of interest to note the distinction there sought to be drawn by Herschell L-C, when he made reference to the situation which arose in Marsh v The Attorney-General (1861) 2 J and H 61. 28. That is a contrast which is useful for present purposes because, in the lastmentioned case, a distinction was drawn between a bequest to a particular organisation, as such, which had in fact ceased to exist, and a situation in which the real intention was to benefit a class of persons who could have been catered for not necessarily within the four walls of the defunct institution. Generally, what was there in issue was a bequest given to the president of a school, not for the benefit of the school as such, but so that education might be given to a class of boys who were desirous of being educated in nautical pursuits. 29. If it could be truly said in the context of the will now under consideration that this was a class of case of the nature first adverted to by Megarry V-C in Re Spence's Will Trusts, that is to say, a very particular benefaction and one which was not expressed to be for a general charitable purpose, then Mr Milazzo's argument must be upheld. 30. However, on a fair reading of the will of the testatrix in the context of the historical circumstances which gave rise to it, I do not come to such a conclusion. 31. Indeed, it seems to me that the whole of the material before me strongly indicates a very different intention and situation. 32. As was pointed out in the course of argument, it cannot be ignored that the bequest here under consideration appears in the midst of a whole series of other requests all of which are, beyond question, of a general charitable nature. 33. It is also to be noted from the express verbiage employed in the will that, insofar as there is reference to St Andrew's Presbyterian Church, that reference is intended merely to refer to the Church in its capacity as provider of a type of service; and it is the general purpose of the service itself which is in contemplation by the testatrix. 34. Moreover, it must be borne in mind that, on the undisputed facts related to this case, the testatrix was clearly well out of touch with the detailed service delivery situation as it existed in Brisbane at the time of the execution of her Will. 35. It is to be noted that quite a number, if not the major proportion, of the bequests made by her in relation to her residue, focused upon situations in the State of Queensland. I infer that, at some stage, the testatrix must have had some relatively strong association with that State, although it certainly does not appear what that was. 36. However, what I am prepared to infer, is that such association must have been at a point in time considerably prior to the date upon which the will was executed. That is clearly evident by the history which I have earlier recited concerning the super-session of the St Andrews Presbyterian Church by the new Uniting Church in Australia, as long ago as 1977. It is also of importance to note that, as at the date when the will was executed, it was the practical situation that a very large Meals on Wheels operation was being conducted by the centralised Association within the metropolitan area of the City of Brisbane. 37. In my view, it is an inescapable conclusion that the testatrix was, in making the bequest expressed to be in favour of the St Andrews Presbyterian Church, directing her attention at the benefiting of a service of the type which was pioneered by the St Andrews Presbyterian Church in Brisbane. That is to say, a service which provided meals to persons who were aged, needy and sick, and resided generally both in the inter-Brisbane city area, and surrounding suburbs - on a non-denominational and apparently non parish basis, so far as the church itself was concerned. 38. All of this leads me to the conclusion that this was a situation in which the church referred to in the Will, was merely nominated as an instrument chosen by the testatrix to give effect to her general intention - to benefit the class of persons catered for by the Meals on Wheels service to which she made reference. I think that such a finding is in general accord with the type of reasoning to be found in the various authorities referred to by Matheson J in the course of his judgment in Andrews v United Aborigines Mission and the Attorney General for the State of South Australia (1988) 144 LSJS 393, and, in particular, The Attorney-General for New South Wales v The Perpetual Trustee Company Limited and Others (1940) 63 CLR 204 at 225-230. 39. Here, in my view, was the expression of a general intention of the nature referred to in those authorities, the object of which was the type of beneficiary, rather than the specific service agency which happened to be nominated in the will of the testatrix. 40. Having regard to those considerations, and the obvious predominant intention of the testatrix expressed in her will, I conclude that the bequest with which this application is concerned was of a general charitable nature; and that the specific service agency and the specific service referred to in the will having ceased to exist, it would be appropriate for the matter to be dealt with on a cy-pres basis - upon the footing that some suitable approved scheme be brought into existence for the purpose of carrying it into effect. 41. I therefore make a declaration to that effect, the precise terms of which can be resolved upon the settling of minutes of order to be drafted by counsel. I direct that a scheme be prepared and submitted to me for my approval for the purpose of carrying the general charitable intention of the testatrix, in this respect, into effect. The order should also provide for costs of all parties to be taxed as between solicitor and client, and paid out of the monies, the subject of the present proceedings. 42. I will stand the matter over for the purpose of making a formal order in this matter upon receiving appropriate minutes of order. 43. I publish these reasons and adjourn the matter for further consideration. If minutes of order are forwarded to me with the agreement of all relevant counsel endorsed on them, I would be prepared, if I am content with what is proposed, to make the final order without further attendance of counsel.